Janna Dutton's Response to Anti-Slapp

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - PROBATE DIVISION

ESTATE OF

JOSEPH L. ZIARNIK

A Disabled Person

Advocacy Guardianship Services, NFP, as Limited Guardian of the Person of Joseph L. Ziarnik and individually, Josh Mitzen as Director, Advocacy Guardianship Services NFP and individually; Devon Bank, as agent for Joseph L. Ziarnik under Power of Attorney for Property dated April 1,2008, as Trustee of the Joseph Ziarnik Trust dated April 1, 2008 and individually, and Janna Dutton, as attorney for the Estate of Joseph Ziarnik and individually,

Plaintiffs,

v.

No. 08 P 8140

Tammi Goldman,

Defendant.

PLAINTIFFS' RESPONSE TO MOTION TO DISMISS FIRST AMENDED COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF AND FOR DAMAGES

Plaintiffs, Advocacy Guardianship Services, NFP, as Limited Guardian of the Person of

Joseph L. Ziarnik and individually, Josh Mitzen as Director, Advocacy Guardianship Services NFP

and individually; Devon Bank, as agent for Joseph L. Ziarnik under Power of Attorney for Property

dated April 1, 2008, as Trustee of the Joseph Ziarnik Trust dated April 1, 2008 and individually, and

Janna Dutton, as attorney for the Estate of Joseph Ziarnik and individually, by and through their

attorneys, JOHNSON & BELL, LTD., submit the following as their response to Defendants' motion to

dismiss.

INTRODUCTION

Plaintiffs have filed their First Amended Complaint stating claims for: (1) defamation; (2)

tortious interference with prospective economic advantage; (3) false light; and (4) invasion of

privacy. Plaintiffs' claims stem from Defendant, Tammi Goldman's ("Goldman"), publication of

false and objectionable material on a website she runs. In sum, Goldman states on her website that

Plaintiffs have engaged in a fraudulent "scam" to steal the assets and money of elderly people who

are placed under their care such as Joseph L. Ziarnik. Goldman claims to have been Mr. Ziarnik's

caregiver and to have witnessed Plaintiffs engage in the conduct which she claims constitutes the

"scam."

Goldman has sought dismissal of all of Plaintiffs' claims. Goldman claims Plaintiffs'

defamation claims should be dismissed because her statements are opinions and hyperbole and not

objectively verifiable statements necessary for a defamation claim. She also claims that because her

statements are made on an internet blog they cannot be actionable. Goldman argues that Plaintiff's

other claims should be dismissed because they fail to allege the necessary elements for them.

Goldman also claims that Plaintiffs' claims should be dismissed because of the Citizen Participation

Act. 735 ILCS 110/15

None of Goldman's arguments possess merit and none warrant dismissal. Each will be

addressed in turn infra.

ARGUMENT

I. Plaintiffs State Viable Claims For Defamation Based Upon Goldman's Website Postings

Goldman seeks dismissal of Plaintiffs' defamation claims on two bases. First, Goldman

claims that her statements are opinions and mere hyperbole stating on an internet blog that cannot

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be deemed to state facts. Second, Goldman claims that Plaintiffs' defamation claims are barred

under the statute of limitations.

A. Goldman's Statements Are Not Subjective Opinion And Constitute Actionable Defamation

Goldman initially argues that the statements contained on her website cannot form the basis

of an actionable claim for defamation because: (1) they are mere hyperbole, opinions, and not

objectively verifiable; and (2) they were made in a subjective forum (i.e., the internet). See Motion,

at pp. 10-14. Neither of these arguments presents any basis for dismissing Plaintiffs' defamation

claims.

1. Glodman's statements are not mere hyperbole and are objectively verifiable

Goldman initially claims that her statements are mere opinions and not objectively verifiable

and cannot therefore form the basis of a claim for defamation. See Motion, at pp. 11-12, 13-14.

Goldman claims that her use of the terms "scam," "crooked," and "ransacking estates" render her

statements mere hyperbole. Id. Goldman's argument is overly simplistic and misguided.

First, Plaintiffs' defamations claims are premised on far more than Goldman's use of the

terms "scam," "crooked," and "ransacking estates." Plaintiffs have identified very specific

statements made by Goldman that purport to state verifiable facts which are completely false.

Examples of these statements made by Goldman and identified in Plaintiffs' First Amended

Complaint include:

'The exact phrasing of what Rick Block (bank trustee at Devon Bank) had to say about Ludwig's money was, "I've got free reign over the old man's half a million dollars! No courts to go through!"

See First Am. Cmplt., at Ex. C, Document #11.

"He [Josh Mitzen] was hired by Devon Bank to put Ludwig on a diabetic sugar high so Sally Griffin (bank trustee) could steal his estate."

See First Am. Cmplt, at Ex. C, Document #13.

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"His attorney [Janna Dutton] forced him to sign those documents."


"Sally [Griffin] did warn us that the three of them were going to steal Ludwig's estate but I honestly didn't think they would result to criminal behavior."


These statements and the other statements identified in Plaintiffs' First Amended Complaint

purport to state specific facts that the evidence in this case will show are completely false. These

statements constitute actionable defamation. See, e.g., Maxon v. Ottawa Publish. Co., 402

Ill.App.3d 704, 929 N.E.2d 666 (3 r d Dist. 2010) (blog postings that plaintiffs had engaged in bribe

were actionable in defamation action).

Even the terms "scam," "crooked," and "ransacking estates" constitute actionable

defamation in the present case. "The context of a statement is critical in determining its meaning."

Nelson v. Levy Home Enter., LLC, 2012 U.S. Dist. LEXIS 15320, *28 (N.D. Ill. Feb. 8, 2012)

(statement that plaintiff used daughter's boyfriend to take money was not mere opinion as it was

"made in a specific context, as a statement revealing why [plaintiff] was fired"). Further, even

terms such as "negligent" that might otherwise denote an opinion may constitute actionable

defamation if a factual basis is provided for the statement. Tunca v. Painter, 965 Ill.App.3d 1237,

1254-55, 2012 Ill. App. LEXIS 98, at *47-48 (1 s t Dist. Feb. 10, 2012) ("...defendants' alleged

statements with regard to plaintiff's negligence contain a factual basis, namely, his cutting the

patient's artery, which is a readily verifiable fact. Thus, defendants' statements were factual, and

therefore, not constitutionally protected opinions").

In the present case, Goldman provides a context and factual basis which gives her terms

"scam," "crooked, and "ransacking estates" a clear and definite meaning. For example, Goldman

does not just use the word "scam," but specifically refers to an "Elder Protective Services Scam"

and then proceeds to lay out the conduct that Plaintiffs allegedly engaged in to effectuate the

"scam." See First Am. Cmplt., at Ex C, Document# 29. This includes statements that Devon Bank

forces its clients into "temporary custody," then pays off doctors to have its clients labeled

"incompetent," then "liquidates" its clients assets, and then places its clients in "nursing homes"

while Devon Bank takes control of its clients' assets. Id. Indeed, every page on Goldman's website

contains the following language which clearly identifies that what follows is the "scam" that she

observed Plaintiffs effectuate with Mr. Ziarnik:

"This is a story of Elder Abuse. I had the unique experience of watching the trustees (Sally Griffin and Richard Block) at Devon Bank in Chicago steal this gentleman's (almost) million dollar estate by hiring people to abuse him with his own money. They then divvied up his estate amongst their friends and threw out his personal possessions."

See First Am. Cmplt., at Ex. C, Document# 1-35.

This is not a case where Goldman has off-handedly referred to Plaintiffs as having engaged

in a "scam" without any explication. The thirty-five (35) documents attached as Exhibit C to

Plaintiffs' First Amended Complaint painstakingly detail alleged actions that Plaintiffs undertook to

effectuate this alleged "scam." Each of these statements is verifiably false, is not constitutionally

protected, and subjects Goldman to claims for defamation.

2. Goldman's statements are actionable despite their being made via the internet

Goldman next claims that no defamation claim may lie against her because her defamatory

statements were placed on her internet blog and no reasonable person could possibly interpret them

as stating facts as a result. See Motion, at pp. 12-13. Goldman cites a Delaware case, Doe v. Cahill,

884 A.2d 451 (Del. 2005), as ostensible support for her argument. Id. Goldman's argument is

confusing to say the least as Cahill sets no such standard than any statement published on an

internet blog may not form the basis of defamation claim. More importantly, Illinois courts have

expressly declined to adopt such a standard.

In Cahill, an anonymous person posted two statements that a city councilman (i.e., a public

figure) that he suffered from "character flaws," "mental deterioration," and was "paranoid" on a

message board sponsored by a local newspaper. 884 A.2d at 454. The message board expressly

stated at the top that "this is your hometown forum for opinions about public issues." Id. The

councilman filed suit against "John Doe" and sought to have the newspaper reveal the identity of

the anonymous person. The court ultimately ruled that the councilman could not state a viable

claim for defamation because of the disclaimer at the top of the message board. 884 A.2d at 467.

Goldman placed no such disclaimer over her blog in the present case.

Further, under Illinois law, "it is well settled that private individuals [such as Plaintiffs in the

present case] and their reputations are more deserving of protection against defamation than public

officials or public figures [such as the councilman in Cahill]" Maxon v. Ottawa Publish. Co., 402

Ill.App.3d 704, 713, 929 N.E.2d 666, 675 (3 r d Dist. 2010). Finally and most importantly, Illinois

courts have expressly declined to hold that any statements made on an internet blog are incapable of

forming the basis of a defamation claim as Goldman urges the Court to do. The court in Maxon

stated:

Moreover, unless we are prepared to hold as a matter of law that nothing published on the Internet is capable of being interpreted as factual, the mere fact that the alleged defamatory statement is published on the Internet does not render it hyperbole. We are not prepared to do so.

Maxon, 402 Ill.App.3d at 716, 929 N.E.2d at 677 (emphasis added).

The mere fact that Goldman made her defamatory statements over the internet does not

insulate her from liability. Goldman made her assertions of fact without any disclaimer and any

person visiting her website would take her assertions to be fact.

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B. The Statute Of Limitations Does Not Bar Plaintiffs' Defamation Claims

Plaintiffs filed their defamation claims on January 9, 2012. Under 735 ILCS 5/13-201, an

action for defamation is to be "commenced within one year next after the cause of action accrued."

Thus, Plaintiffs' defamation claims must have accrued on or after January 9,2011 to be actionable.

Goldman claims that the Court should dismiss Plaintiffs' defamation claims because they

were not timely filed. Without any supporting affidavit or other evidence,1 Goldman states that she

"published" her website on June 23, 2010 and that she "finished publishing the bulk of it on

October 6, 2010." See Motion, at p. 18. However, a review of the thirty-five (35) documents

attached as Exhibit C to Plaintiffs' First Amended Complaint that form the basis of Plaintiffs'

defamation claims reveals that only two of the documents indicate a publication date prior to

January 9, 2011. Document #1 indicates a publication date of January 7, 2011. Document #33

indicates a publication date of October 5, 2010. The other thirty-three (33) documents attached to

Plaintiffs' First Amended Complaint indicate publication dates later than January 9, 2011 or have

no dates attached to them. Thus, only Document #1 and #33 are potentially implicated under any

statute of limitations analysis.

Goldman claims that the single publication rule under 740 ILCS 165/1 mandates that the

statute of limitations begins to run when a defamatory statement is first published on the internet

and any claim for defamation based on matter that was published on the internet before January 9,

2011 is therefore barred. See Motion, at p. 18.

"It is the general rule that each communication of the same defamatory matter by the same

defamer, whether to a new person or to the same person, is a separate and distinct publication, for

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Goldman attaches as Ex. D. to her Motion a printout purporting to show that the "Introduction" page to her website was created on June 23, 2010. This one page printout does nothing to establish that the thirty-five (35) documents attached to Plaintiffs' First Amended Complaint that form the basis of Plaintiffs' defamation claims were created and/or published prior to January 9, 2011.

which a separate cause of action arises." Hukic v. Aurora Loan Services, 588 F.3d 420,436 (7 Cir.

2009) (quoting Restatement (Second) of Torts 557A, cmt. a (1977)). The single publication rule

is an exception to the general rule and "is applied in cases where the same communication is heard

at the same time by two or more persons." Id. The single publication rule does not include separate

aggregate publications on different occasions and does not apply if the "information conveyed did

not stay the same." Id., at 437; see also Woodhull v. Meinel, 202 P.2d 126, 537 (N.M. Ct. App.

2008) ("'Republication' is an exception to the single publication rule, giving rise to a new cause of

action that restarts the statute of limitations"); Blair v. Nevada Landing P'ship, 369 Ill.App.3d 318,

325, 859 N.E.2d 1188, 1194 (2 n d Dist. 2006) (republication can constitute new cause of action).

Even Documents #1 and #33 are not barred as untimely under the single publication rule as

Goldman updated and republished her web site well within the one-year limitations period under

735 ILCS 5/13-201. Plaintiff specifically allege in their First Amended Complaint:

Defendant Tami Goldmann made and continues to make multiple and frequent changes to her website and blog containing the defamatory statements regarding plaintiffs. Each time defendant Tami Goldmann has made any change to her website or blog, it received a different rating in Google's and other search engine algorithms, comes up differently in response to an internet search and therefore is published to a different audience searching the internet.

With each new defamatory posting by defendant Goldmann, her entire blog and website appeared differently in every new internet search by a member of the public, reaching a new audience.

The republication of defamatory material constitutes a new cause of action if it is altered so as to reach a new audience.

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See First Am. Cmplt., at 54-56. Once again, Goldman provides no affidavit or other evidence to

refute Plaintiffs' allegations and they must therefore be taken as true. In re: Chicago Flood

Litigation, 176 I11.2d 179, 184, 680 N.E.2d 265 (1997) ("[a] motion to dismiss under either section

2-615 or section 2-619 of the [Illinois Code of Civil Procedure] admits all well-pled allegations in

the complaint and reasonable inferences drawn from the facts").

Indeed, even a cursory review of the blog posts attached as Exhibit C to the First Amended

Complaint which form the basis of Plaintiffs' defamation claims reveals that they were constantly

updated with new and different material by Goldman within the one-year limitations period. See

First Am. Cmplt., at Ex. C. Each individual page of the website has a list of "Chapters" on the right

hand side of the page that presents updates and new material for the web page. Id.

These substantive changes made by Goldman constitute a republication of her defamatory

statements and reset the statute of limitations period. See, e.g., In re: Davis, 347 B.R. 607, 611-12

(W.D. Ky. 2006) (affirming finding that additional material added to website constituted

republication and stating that "where substantive material is added to a website, and that material is

related to defamatory material that is already posted, a republication has occurred...To hold

otherwise would give a publisher carte blanche to continue to publish defamatory material on the

Internet after the statute of limitations has ran in the first instance"). Thus, even the statements

made on Documents #1 and #33 are not time barred.

II. Plaintiffs Adequately State A Claim for Tortious Interference

Goldman next moves to dismiss Count II of Plaintiffs First Amended Complaint on the

basis that Plaintiffs have failed to identify any specific third parties whose relationship with

Plaintiffs was damaged because of Goldman's conduct. See Motion, at pp. 15-16.

At the very least, Goldman's conduct has damaged Plaintiffs' relationship with their client,

Mr. Ziarnik. This is sufficient to withstand Goldman's motion. See Grund v. Donegan, 298

Ill.App.3d 1034, 1038, 700 N.E.2d 157, 160 (1 s t Dist. 1998) (at will relationship between lawyer

and client sufficient for tortious interference claim).

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III. Plaintiffs Adequately State A Claim For False Light Invasion Of Privacy In Count III Of The First Amended Complaint

Count III of Plaintiffs' First Amended Complain states a claim for false light invasion of

privacy. Goldman summarily argues - without even a self-serving affidavit - that Count III should

be dismissed because "It's the Defendant's belief that abusing wealthy elderly and disabled citizen's

through guardianship in order to profit is cruel and she said as much on her personal website and

blog." See Motion, at p. 17. Goldman maintains there is no malice necessary to state a claim for

false light invasion of privacy as a result.

If the Court were to accept Goldman's argument then a plaintiff could never state a claim for

false light invasion of privacy so long as the defendant maintained that he/she really believed the

highly offensive and false statement that formed the basis of the plaintiff's claim. Goldman's

argument is entirely untenable and unsurprisingly unsupported by any citation or authority. Further,

Illinois courts have held that where a plaintiff pleads that a defendant knew statements were false or

acted with reckless disregard as to whether the statements were true or false - as Plaintiff have done

in the present case (see First Am. Cmplt., at 59, 71), "whether in fact defendants acted with

actual malice remains a jury question." Dubinsky v. United Airlines Master Exec. Council, 303

Ill.App.3d 317, 331, 708 N.E.2d 441, 452 (1 s t Dist. 1999); see also Parker v. House O'Lite Corp.,

324 Ill.App.3d 1014, 1032, 756 N.E.2d 286, 301 (1 s t Dist. 2001) (reversing summary judgment on

false light invasion of privacy claim because malice was fact issue).

IV. Count IV Of The First Amended Complaint Properly States A Claim For Invasion Of Privacy

Count IV of the First Amended Complaint states a claim for invasion of privacy based upon

Goldman's obtaining and publishing private and personal facts about Mr. Ziarnik on her website.

Goldman claims without any explication that Count IV should be dismissed because "[Plaintiff] has

not satisfied the first element thereby not complying with elements 2, 3, and 4." See Motion, at p.

18. Goldman recites the elements of a claim for an invasion of privacy intrusion upon seclusion

claim. Id., at 17-18. In fact, Count IV does state all the elements necessary for an invasion of

privacy claim based on intrusion upon seclusion and also states a claim for invasion of privacy

based on publication of private facts.

Although not clearly stated, Goldman seems to argue that the first element of an intrusion

upon seclusion is not satisfied here because Mr. Ziarnik voluntarily disclosed to her the facts that

she posted on her website. Goldman seems to argue that it is therefore not possible that there was

an "unauthorized intrusion or prying" into Mr. Ziarnik's seclusion. However, as Illinois courts have

recognized, even where there is a voluntary disclosure of information, the "means used by

defendant to induce plaintiffs to reveal this information [may be] deceptive" and sufficient to

sustain a claim for intrusion upon seclusion. Johnson v. K-Mart Corp., 311 Ill.App.3d 573, 578,

723 N.E.2d 1192, 1196 (1 s t Dist. 2000) (investigators posing as employees to gather personal

information from other employees sufficiently deceptive to allow claim for intrusion upon seclusion

claim to go forward despite the fact that employees voluntarily disclosed information).

In the present case, there is at least a fact issue regarding the means employed by Goldman

to induce Mr. Ziarnik to disclose his personal information. Mr. Ziarnik suffers from dementia,

diabetes, and heart disease and is reliant upon others for his care. See First Am. Cmplt., at If 5.

Goldman provided such care to Mr. Ziarnik. Id, at . Using this position of trust, Goldman was

able to extract personal information from Mr. Ziarnik such as his net wealth, his medical condition,

and the other information set forth in Count IV of the First Amended Complaint. Goldman's means

of ingratiating herself to Mr. Ziarnik and providing for him while he was in a debilitated state raises

the issue of whether the means she employed were deceptive and is sufficient to satisfy the

"unauthorized intrusion or prying" element of a claim for intrusion upon seclusion. Johnson supra.

5. diabetes, and heart disease and is reliant upon others for his care. See First Am. Cmplt., at

Goldman provided such care to Mr. Ziarnik. Id., at 9. Using this position of trust, Goldman was

able to extract personal information from Mr. Ziarnik such as his net wealth, his medical condition,

and the other information set forth in Count IV of the First Amended Complaint. Goldman's means

of ingratiating herself to Mr. Ziarnik and providing for him while he was in a debilitated state raises

the issue of whether the means she employed were deceptive and is sufficient to satisfy the

"unauthorized intrusion or prying" element of a claim for intrusion upon seclusion. Johnson supra.

Further, Plaintiff has also satisfied the elements necessary for a claim of publication of

private facts. A cause of action for public disclosure of private facts requires the following

elements: (1) publicity was given to the disclosure of private facts; (2) the facts were private and not

public facts; and (3) the matter made public would be highly offensive to a reasonable person.

Johnson v. K-Mart Corp., 311 Ill.App.3d 573, 579, 723 N.E.2d 1192, 1197 (1 s t Dist. 2000). There

is little doubt that Goldman published Mr. Ziarnik's private facts, including his net worth, his

medical history, and other private matters, on her website for all to see. See First Am. Cmplt., at

Count IV. Any reasonable person would find it highly offensive to have such information

submitted for public dissemination.

V. The Citizen's Participation Act Does Not Bar Plaintiffs' Claims

Finally, Goldman claims that Plaintiffs' claims are barred by the Illinois Citizen

Participation Act, 735 ILCS 110/15. See Motion, at pp. 19-22. Goldman states that "Upon filing a

motion to dismiss under this Act, the burden rests on the Plaintiffs to produce clear and convincing

evidence the acts of the Defendant are not immunized from, or are not in furtherance of acts

immunized from, liability by this Act." Id., at p. 19. Goldman misunderstands the burden shifting

analysis once a claim and/or motion is made under the Citizen Participation Act. Goldman's

assertion that simply upon the filing of a motion to dismiss a burden is then somehow placed upon

the plaintiff to provide clear and convincing evidence that the defendant's acts are not immune from

liability is simply wrong.

The Illinois Supreme Court recently addressed the shifting burdens of the plaintiff and

defendant when a claim is made under the Citizen Participation Act:

Section 15 requires the moving party to demonstrate that the plaintiff's complaint is "based on, relates to, or is in response to any act or acts of the moving party in furtherance of the moving party's rights of petition, speech, association, or to otherwise participate in government." [citations omitted]. If the moving party has met his or her burden of proof the burden then shifts to the responding party to

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produce "clear and convincing evidence that the acts of the moving party are not immunized from, or are not in furtherance of acts immunized from, liability" under the Act. [citations omitted]. Thus, defendants had the initial burden of proving that plaintiff's lawsuit was solely "based on, relate[d] to, or in response to" their acts in furtherance of their rights of petition, speech or association, or to participate in government. Only if defendants have met their burden does the plaintiff have to provide clear and convincing evidence that defendants' acts are not immunized from liability under the Act.

Sandholm v. Kuecker, 2012 Ill. LEXIS 33, at *35-36, 962 N.E.2d 418, 434 (2012) (emphasis

added). Far from placing shifting a burden to Plaintiffs upon the filing of a motion to dismiss, the

burden rests squarely on Goldman to prove that Plaintiffs' lawsuit is "solely based on" Goldman's

rights to free speech, association, or participation in government. This is a burden that Goldman has

not - and cannot - meet.

If a plaintiff's intent in bringing suit is to recover damages for alleged defamation and not to

stifle defendant's rights of petition, speech, association, or participation in government, it is not a

Strategic Lawsuit Against Public Participation ("SLAPP") and does not fall within the purview of

the Citizen Participation Act. Sandholm, 2012 Ill. LEXIS at *42, 962 N.E.2d at 429. Further,

"where a plaintiff files suit genuinely seeking relief for damages for the alleged defamation or

intentional tortious acts of defendant, the lawsuit is not solely based on defendant's rights of

petition, speech, association, or participation in government. In that case, the suit would not be

subject to dismissal under the Act." Id., at 430.

There is not one shred of evidence presented by Goldman that Plaintiffs have filed this

lawsuit to thwart Goldman's rights of petition, speech, association, or participation in government.

Goldman has utterly failed to sustain her burden. Plaintiffs have brought their defamation claims to

remedy Goldman's willful and false accusations. The Citizen Participation Act is not implicated at

all in this case and does not warrant its dismissal.

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CONCLUSION

For all of these reasons, Plaintiffs respectfully request that Goldman's motion to

dismiss be denied, that the Court enter an order providing for the same and for such other relief

as the Court deems just and proper.

Joseph R. Marconi Victor J. Pioli JOHNSON & BELL, LTD.

33 West Monroe Street Suite 2700 Chicago, Illinois 60603 312-372-0770 312-372-9818 (fax)

Attorneys for Plaintiffs, Devon Bank, Advocacy Guardianship Services NFP, Josh Mitzen, and Janna Dutton

Respectfully submitted,

DEVON BANK, ADVOCACY GUARDIANSHIP SERVICES NFP, JOSH MITZEN, and JANNA DUTTON

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The undersigned states that she has served the foregoing Plaintiffs' Response to Motion to Dismiss First Amended Complaint for Declaratory and Injunctive Relief and for Damages to the attorneys of record in this cause by depositing a copy of same in the U.S. Mails, properly addressed and with proper postage affixed thereto, on August 2, 2012.

Edwin J. Belz 4407 N. Elston Ave. Chicago, IL 60630